Many believe that what employees do on their own time should not be regulated by employers, but the boundary between the workplace and an employee’s private life is not absolute. As recent high profile cases have demonstrated, some off-duty misconduct, such as criminal or morally reprehensible behaviour, may invite discipline or even dismissal of employees. It is generally accepted that employers can regulate employees’ conduct in the workplace through the promulgation of reasonable rules, policies and procedures. Increasingly, however, employers are facing difficult decisions concerning employee misconduct that occurs outside the workplace. While the line can be difficult for employers to draw, employers should consider the following guidelines in determining whether an employee can be properly disciplined or dismissed for off-duty misconduct.
1. Is there a nexus between the off-duty conduct and the employment relationship?
A nexus between off-duty conduct and the employment relationship is established when the misconduct has a substantial, prejudicial impact upon the employer’s business. For example, an employee’s off-duty conduct can significantly diminish an employer’s reputation, or render the employee incapable of performing his or her duties effectively. In one high profile case, an Ontario court upheld the dismissal of a long-service employee with a clean employment record for being charged with possession of child pornography. The very public nature of the charges and the attendant reputational damage to the employer were key considerations in upholding the dismissal for off-duty misconduct. In determining whether off-duty conduct has actually had a detrimental impact upon the employer’s business, employers should be practical and objective. In law, it is difficult to demonstrate reputational damage, and adjudicators can be skeptical of speculative assertions about the impact of an employee’s behaviour outside the workplace. The impact must be real and severe; it cannot be speculative or trivial.
2. Is the workplace unionized?
Generally speaking, employers face more scrutiny when imposing discipline under a collective agreement, largely because collective agreements require employers to discipline and discharge employees only for “just cause”. In non-union workplaces, employers are normally only constrained by the “just cause standard” if they choose to dismiss an employee without notice of termination or termination pay. In either case, employers should only choose to rely upon the defence of just cause where they have compelling evidence of off-duty misconduct constituting a serious breach of objectively acceptable standards of public behaviour.
3. Is the off-duty conduct related to a protected ground under human rights legislation?
In every case, employers must consider whether the off-duty conduct is related to a protected ground under human rights legislation. For example, a criminal conviction for impaired driving may be the result of an alcohol addiction that qualifies as a disability under human rights legislation. This can give rise to a duty to accommodate the employee’s disability, requiring the employer to refrain from disciplining the behaviour. Employers who have reason to believe that an employee’s misconduct may be the result of a disability should take appropriate steps to obtain information about whether the employee has a disability, and the extent to which it must be accommodated before moving to discipline or dismissal.
4. Is the discipline or discharge a proportionate response?
Where the employer chooses to rely upon the defence of just cause, it is important to consider whether the disciplinary response is excessive considering all of the circumstances. The punishment must fit the crime. An often-cited case lists the following factors for evaluating whether discharge is appropriate for off-duty misconduct:
- How serious is the immediate offence of the employee which precipitated the discharge?
- Was the employee’s conduct premeditated, or repetitive, or was it a momentary and emotional aberration, perhaps provoked by someone else?
- Does the employee have a record of long service with the employer in which he proved an able worker and enjoyed a relatively free disciplinary history?
- Has the employer attempted earlier and more moderate forms of corrective discipline of this employee which did not prove successful in solving the problem?
- Is the discharge of this individual employee in accordance with the consistent policies of the employer or does it appear to single out this person for arbitrary and harsh treatment?
5. Is the workplace in the public sector?
Public sector employees face special restrictions as to what they can do as private citizens. Case law confirms that certain off-duty conduct is simply incompatible with public sector employment. For example, in one extreme case, the Peel Board of Education was found to have just cause for dismissing a teacher who attended conferences sponsored by organizations that support white supremacist and anti-Semitic views. Further, legislation often specifically limits off-duty conduct of public sector employees. In sum, employers should be cautious when imposing discipline for off-duty conduct. Where there is a nexus between the off-duty conduct and the employment relationship, employers must be careful not to impose discipline for conduct that is related to a protected ground under human rights legislation. If discipline is justified, then employers must consider all of the circumstances in determining whether discharge is appropriate, including the seriousness of the employee’s behaviour, whether it was premeditated or repeated, and whether the employee has been disciplined in the past. By Mark Mendl and Jordan Kirkness (Baker & McKenzie Toronto) This article was first posted on Baker & McKenzie’s Canadian Employment and Labour Law Blog